Hicks v. State

• Decision Date: 13 April 1993
• Citation: 631 A.2d 6
• Parties: James HICKS, Defendant-Below, Appellant, v. STATE of Delaware, Plaintiff-Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 6

631 A.2d 6

James HICKS, Defendant-Below, Appellant, v. STATE of Delaware, Plaintiff-Below, Appellee.

Supreme Court of Delaware.

Submitted: April 13, 1993.

Decided: Oct. 1, 1993.

On appeal from the Superior Court. REVERSED and REMANDED.

William M. Chasanov, Brown, Shiels & Chasanov, Georgetown, for appellant.

John R. Garey, Deputy Atty. Gen., Dept. of Justice, Georgetown, for appellee.

Before VEASEY, C.J., and HORSEY, MOORE, WALSH and HOLLAND, JJ. (constituting the Court en Banc)

MOORE, Justice.

James E. Hicks ("Hicks") appeals his convictions in the Superior Court of Trafficking in Cocaine and Possession of Drug Paraphernalia. We face an important question as to how far the police may legitimately execute a search under 11 Del.C. § 1903 and the United States Supreme Court's decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We believe that both Section 1903 and Terry provide the police with an absolute right to search a person for weapons if that person has been legitimately detained and the officer has a reasonable belief that the detainee is presently armed and dangerous. In this case, however, we are forced to conclude that the search, after it was determined that the defendant did not possess a weapon, exceeded the permissible scope of an investigatory detention. Under the "fruits of the poisonous tree" doctrine, we must exclude all evidence obtained directly or indirectly from this illegal search. Accordingly, we reverse the judgments below.

I.

The facts are essentially undisputed. A uniformed officer of the Delaware State Police was patrolling Reed Street in Frankford, Delaware, when he observed a white Chevrolet Chevette stopped in the middle of Reed Street, ostensibly in violation of 21 Del.C. § 4178(a). ¹ Not knowing whether the car was disabled or simply impeding traffic, the officer stopped to determine the problem. As the officer drove his car toward the Chevette, it moved forward and turned right into a private residential driveway. The officer followed the Chevette as it turned and stopped in the private drive. He left his car and approached the driver. The officer asked the driver, Monica Collins ("Collins"), for her driver's license and registration. As he was speaking to Collins, the officer suddenly noticed Hicks approaching from his left.

As Hicks came closer, the officer heard him doing a lot of "talking" and he observed that Hicks had both of his hands concealed inside his pockets. The officer also noticed that a group of six to eleven people had assembled around the car as he spoke to Collins. Alone in a high-crime area, best known for the large number of narcotics arrests that occur there, the officer began to feel uneasy about the growth of the crowd and Hicks' apparent interest in his investigation. The officer turned and asked Hicks what he was doing there. Rather than simply telling the officer that Collins was his girlfriend, Hicks asked the officer to explain what he was doing. This exchange caused the officer to become increasingly concerned about his exposure to risk of harm from Hicks and contributed to his fear that Hicks was keeping his hands in his pockets in order to conceal a weapon.

Hoping to complete his investigation without further interruption or interference, the officer asked Hicks to leave the area while he talked to Collins. Hicks mumbled an unintelligible response, but nevertheless remained in the immediate area of the car. Feeling menaced by Hicks' continued movement and refusal to move on, the officer decided to detain and identify him. Once the officer detained Hicks, he made a record of his contact for subsequent police use and radioed in a computer check to determine if Hicks had any outstanding warrants. As he waited for the results of his computer check, the officer decided to do a pat-down search of Hicks for any weapons. The officer then began a cursory search of Hicks' outer clothing. He discovered what felt like a large bulge in the left side of Hicks' jacket pocket up around his chest area. Concerned that this bulge was a concealed weapon, the officer reached underneath the coat to remove the object. He discovered it to be a medium-sized green pouch.

The officer's first thought upon recovering the pouch was that it was large enough to conceal a handgun. Anticipating the officer's concern, Hicks spontaneously remarked that the pouch contained his grandmother's money. The officer, however, did not believe Hicks. He opened the pouch, looked inside and saw a "wallet full of money and ... a sandwich bag or something." Knowing that drugs are frequently packaged in sandwich or cellophane bags, the officer seized the pouch, and decided to further examine its contents to see if any drugs were concealed inside. From this point it is undisputed that the officer had the pouch entirely in his possession and control.

Before the officer continued his search of the pouch, however, he decided to remove Hicks from the area in order to avoid any potential threat from the growing crowd. The officer placed Hicks in his police car and drove him to a hardware store approximately one-half mile away. At that location, the officer reexamined the pouch, which had remained in his sole possession and control, and found $1,739.30 in cash and a clear plastic bag containing what was later verified to be 6.48 grams of crack cocaine. ² Hicks was arrested and he later confessed to possessing cocaine for purposes of sale.

II.

On appeal, Hicks contends that the Superior Court erred in failing to suppress the evidence obtained during the pat-down search because, in the clear absence of any reasonable grounds to suspect that Hicks was committing or was about to commit a crime, the detention and search violated 11 Del.C. § 1902 and the United States Constitution. We review the trial court's refusal to grant a motion to suppress, after an evidentiary hearing, under an abuse of discretion standard. Gregory v. State, Del.Supr., 616 A.2d 1198, 1200 (1992); Alston v. State, Del.Supr., 554 A.2d 304, 308 (1989), cert. denied, 490 U.S. 1101, 109 S.Ct. 2455, 104 L.Ed.2d 1009 (1989). Thus, Hicks' convictions can only be reversed if the Court finds the decision below to be clearly erroneous. Potts v. State, Del.Supr., 458 A.2d 1165, 1168 (1983).

Hicks first argues that the trial court should have suppressed the evidence because the police did not have reasonable suspicion upon which to justify a stop or search of his person. As a general rule, the police may forcibly stop and detain a person if the police have a reasonable suspicion of criminal activity on the part of that person. See Terry v. Ohio, 392 U.S. at 22, 88 S.Ct. at 1880; U.S. v. Place, 462 U.S. 696, 702, 103 S.Ct. 2637, 2641, 77 L.Ed.2d 110 (1983); Coleman v. State, Del.Supr., 562 A.2d 1171, 1174 (1989), cert. denied, 493 U.S. 1027, 110 S.Ct. 736, 107 L.Ed.2d 754 (1990); Byrd v. State, Del.Supr., 458 A.2d 23, 25 (1983); see also 11 Del.C. § 1902. "Reasonable suspicion has been defined as the officer's ability to point to specific and articulable facts which, taken together with all rational inferences from those facts, reasonably warrant the intrusion." Coleman, 562 A.2d at 1174 (emphasis added) (quoting Terry v. Ohio, supra ).

In Delaware, these principles have been codified in 11 Del.C. § 1902. Coleman, 562 A.2d at 1174, n. 3. This section provides:

(a) A peace officer may stop any person abroad, or in a public place, who he has reasonable ground to suspect is committing, has committed or is about to commit a crime, and may demand of him his name, address, business abroad and where he is going.

(b) Any person so questioned who fails to identify himself or explain his actions to the satisfaction of the officer may be detained and further questioned and investigated.

(c) The total period of detention provided for by this section shall not exceed 2 hours. The detention is not an arrest and shall not be recorded as an arrest in any official record. At the end of the detention the person so detained shall be released or be arrested and charged with a crime.

11 Del.C. § 1902. The purpose of this section was to legalize the questioning and detention of persons without probable cause where the express criteria of this section were met. State v. Deputy, Del.Supr., 433 A.2d 1040, 1042 (1981) (emphasis added); State v. Bowden, Del.Supr., 273 A.2d 481, 484 (1971). Where, however, there is no reasonable basis to suspect the detainee had committed, was committing, or was about to commit a crime, any detention of that defendant is unlawful. State v. Wrightson, Del.Super., 391 A.2d 227, 229 (1978).

In this case, the trial judge indicated that the real question was whether it was reasonable to conduct a pat-down search of a person whose behavior made the police officer apprehensive for his own safety. Although Hicks argues that the trial judge never reached the dispositive question whether there were reasonable grounds to detain the defendant under 11 Del.C. § 1902, we believe there was sufficient evidence for the court to conclude that Hicks' initial detention was justified in the interests of the officer's safety.

We recognize that a police officer making a reasonable investigatory stop may protect himself or herself from attack by a hostile suspect, Terry, 392 U.S. at 23, 88 S.Ct. at 1881, but that the officer's authority under such circumstances is clearly limited by constitutional principles. One such limitation is that the person searched must have been first detained pursuant to the requirements and consistent with the scope of 11 Del.C. §§ 1902-1903. ³ Another limitation is that the officer must possess a reasonable belief that the detainee is presently armed and dangerous. State v. Morrow, Del.Supr., 603 A.2d 835, 837 (1992); Nash v. State, Del.Supr., 295 A.2d 715, 718 (1972). In the absence of either such conditions, a police officer may not conduct a pat-down search without violating ...